Wheeler v. Lawler

110 N.E. 273, 222 Mass. 210, 1915 Mass. LEXIS 942

Opinion

Carroll, J.

August 3,1913, the defendants wrote to the plaintiff, authorizing her to procure a purchaser for their “Amherst. moving picture show,” at the price of $1,500, stipulating: “The party must be all right as we do not care to sell to every one.” The plaintiff was to receive ten per cent of the purchase price as her commission. On receipt of the letter she called on one John H. Kimball, the manager of the Eastern Theatres Company, and as a result of her efforts Kimball began negotiations with the defendants, and saw one of them at Amherst. August 15, 1913, Kimball wrote to the defendants, offering to pay the sum of $1,000 for the property. August 18, he wrote offering $1,250. Both offers were refused. August 21, 1913, he again wrote, saying: “I am inclined to feel that we may be able to get together.” August 28, in a letter of that date, Kimball expressed his disappointment at the defendants’ refusal to sell, and said he "had come prepared to accept your offer, . . . had made my arrangements to take over the same, and our board of directors have fully passed on the matter.” September 26, 1913, the defendants sent the letter to the plaintiff which is set forth in the footnote.

* There was additional evidence tending to show that Kimball became interested in the purchase of the property through the plaintiff’s efforts; that he was ready, able and willing to pay $1,500; and the first notification the plaintiff received of the withdrawal of the defendants’ offer of sale was the letter of September 26.

The defendants contended that no offer of $1,500 was received from Kimball; that the plaintiff’s authority to act as their broker was revoked; and further, that she was acting in a dual capacity, the claim being, she was in the employ of Kimball at the time of his alleged offer.

These were all questions of fact for the jury, and the judge could not rule, as matter of law, that the plaintiff could not recover. There was some evidence that the plaintiff found a customer ready, able and willing to buy at the stated price; that the buyer’s offer was refused, and the only real objection to the defendants’ selling was because one of the defendant partners refused to execute and carry out the sale; that the plaintiff was not discharged until Kimball’s offer to buy had been made, and that the plaintiff was acting solely as the agent of the defendants.

These assertions of the plaintiff were all denied by the defendants, and they introduced evidence supporting their contention; but it was plainly for the jury to decide what the facts were, and, if they were as stated by the plaintiff, she was entitled to recover. Brilliant v. Samelas, 221 Mass. 302, 303. Fitzpatrick v. Gilson, 176 Mass. 477. Witherell v. Murphy, 147 Mass. 417. See Leonard v. Eldridge, 184 Mass. 594.

The plaintiff had the right to argue that the letter of September 26 disclosed, that, the defendants’ real refusal to sell was based on the fact that one of the partners would not “under any consideration agree to transfer the Amherst theatre,” and not on the refusal of Kimball to pay the price originally demanded by the defendants. Marlborough Gas Light Co. v. Neal, 166 Mass. 217. Brewer v. Winchester, 2 Allen, 389. Gerrish v. Norris, 9 Cush. 167.

The second and third requests of the defendants deal with the right of the defendants to withdraw the property from the market before their terms were accepted. It was a question of fact whether this was done. While Kimball did make a smaller offer than $1,500, there was evidence from the plaintiff and from the Kimball letter of August 28, tending to show that, before the authority of the plaintiff was revoked, the purchaser was prepared to pay the price asked; and from the letter of September 26 the jury might have found that this letter was the first notice sent to her of the withdrawal of the property.

The fifth request was properly refused. If, as contended by the defendants, the plaintiff was acting as the agent of Kimball or of the Eastern Theatres Company in buying the property, she could not recover. This was a question for the jury. Cohen v. Ames, 205 Mass. 186.

What we have said disposes of the other requests of the defendants.

Exceptions overruled.

“Greenfield, Mass., Sept. 26, 1913. |

“Dear Miss Wheeler:

Replying to your letter received sometime ago, beg to say that I took up the matter of the Amherst house with Mr. Kimball, he did not want to give the price that I named. My brother was very much opposed to selling this property, but I thought that perhaps he would change his mind.

Mr. Kimball finally wrote me a letter that he would meet me in Amherst regarding" the matter, as his letter intimated that he was ready to do business at the price I named and as my brother was opposed to selling the property and informed me that if I did not want to continue, that he would take my share himself, I called Mr. Kimball on the phone and told him the circumstances.

Mr. Kimball has since been here and we talked the matter over but my brother will not under any consideration agree to transfer the Amherst theatre and for that reason we cannot do business with Mr. Kimball.

Yours truly,

Lawler Bros.”